Citation NR: 9740204
Decision Date: 12/03/97 Archive Date: 12/12/97
DOCKET NO. 92-03 090 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to a compensable rating for infectious
hepatitis.
2. Entitlement to service connection for heart disease,
claimed as secondary to infectious hepatitis.
3. Entitlement to service connection for diabetes mellitus,
claimed as secondary to infectious hepatitis.
REPRESENTATION
Appellant represented by: Denny Hyslip, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Associate Counsel
INTRODUCTION
The veteran had active service from March 1952 to January
1955.
Initially, the Board of Veterans’ Appeals (Board) observes
that this claim on appeal was originally limited to the issue
of entitlement to an increased rating for infectious
hepatitis which was found by the United States Court of
Veterans Appeals (Court) to require further development as
noted in [citation redacted]. Following two subsequent Remands from the Board in July 1994 and June 1995, the Board notes that the regional
office (RO) not only readjudicated that issue of an increased
rating, but also adjudicated issues of entitlement to service
connection for heart disease and diabetes mellitus, claimed
as secondary to infectious hepatitis. As the veteran has
filed both a notice of disagreement and substantive appeal
with respect to the RO’s decision in this regard, the Board
finds that these issues are also proper subjects for current
appellate consideration.
The Board further notes that in addition to the issues on
appeal, an October 1997 rating decision denied service
connection for heart disease as secondary to tobacco use in
service. The record does not indicate that the veteran has
filed a notice of disagreement with this decision, and this
issue is therefore not appropriate for current appellate
consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his infectious hepatitis is more
disabling than currently evaluated, and that he is entitled
to a compensable rating. In the veteran’s January 1992
substantive appeal, the veteran asserts that he should be in
the 60 percent category for his infectious hepatitis since
post service civilian hospital records indicate liver damage.
The veteran refers to his hospital admissions after
separation which show continuing liver problems, and
specifically cites hospital admissions in March 1956, October
1962, November 1962, and November 1971. The veteran also
maintains that too much emphasis has been placed by the
regional office (RO) on the results of a January 1991
Department of Veterans Affairs (VA) examination, which seemed
to ignore past hospital records. The veteran contends that
his medical records indicate a lifetime of liver problems.
In his substantive appeal, dated in October 1996, the veteran
submits that his heart disease is related to his infectious
hepatitis, and that his diabetes mellitus is also connected
with his infectious hepatitis. The veteran further indicated
that he believed that he had not been the recipient of any
reasonable doubt in this matter.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that a preponderance of the
evidence is against a compensable rating for infectious
hepatitis, and for service connection for either heart
disease or diabetes mellitus, claimed as secondary to
infectious hepatitis.
FINDINGS OF FACT
1. Infectious hepatitis, manifested by reported epigastric
complaints, but no evidence of chronic liver disease, is not
productive of more than healed, nonsymptomatic infectious
hepatitis.
2. Heart disease is not causally related to infectious
hepatitis.
3. Diabetes mellitus is not causally related to infectious
hepatitis.
CONCLUSIONS OF LAW
1. The schedular criteria for a compensable evaluation for
infectious hepatitis have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.7, 4.115, Diagnostic Code
7345 (1997).
2. Heart disease is not proximately due to or the result of
infectious hepatitis. 38 U.S.C.A. § 5107; 38 C.F.R.
§ 3.310(a) (1997).
3. Diabetes mellitus is not proximately due to or the result
of infectious hepatitis. 38 U.S.C.A. § 5107; 38 C.F.R.
§ 3.310(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Infectious Hepatitis
Background
The Board finds that the claim is well grounded and
adequately developed. 38 U.S.C.A. § 5107(a); Proscelle v.
Derwinski, 2 Vet. App. 629 (1992).
Disability evaluations are determined by the application of a
schedular rating which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
Infectious hepatitis is rated 0 percent when healed and
nonsymptomatic. A 10 percent rating is assigned when there
is demonstrable liver damage with mild gastrointestinal
disturbance, and the condition is rated 30 percent when there
is minimal liver damage with associated fatigue, anxiety, and
gastrointestinal disturbance of lesser degree and frequency
(than the next higher rating) but necessitating dietary
restriction or other therapeutic measures. Infectious
hepatitis productive of moderate liver damage and disabling
recurrent episodes of gastrointestinal disturbance, fatigue,
and mental depression is rated 60 percent. A 100 percent
rating is warranted when infectious hepatitis is productive
of marked liver damage manifest by liver function test and
marked gastrointestinal symptoms, or with episodes of several
weeks duration aggregating three or more a year and
accompanied by disabling symptoms requiring rest therapy. 38
C.F.R. § 4.114, Code 7345.
A review of the history of this disability shows that service
connection was granted by the Board in a Board decision in
September 1991, based on additional service and private
medical records. The additional service medical records were
found to show that the veteran had been treated during
service in late 1954 for what was diagnosed as infectious
hepatitis with jaundice. Subsequent private medical records
were found to show that the veteran was hospitalized in 1962
with epigastric pain and soreness over the liver region, and
that there was a diagnosis of acute mild infectious
hepatitis. Although then-current clinical records were found
to show no clinical residuals of infectious hepatitis, the
same physician indicated that the veteran’s history was quite
consistent with infectious hepatitis. Accordingly, the Board
gave the veteran the benefit of the doubt and granted service
connection for infectious hepatitis.
Thereafter, a September 1991 rating decision found that the
veteran’s infectious hepatitis was noncompensable in view of
the fact that there were no gastrointestinal (GI)
disturbances and no clinical evidence of liver damage. A
September 1992 Board decision which denied an increased
evaluation for this disorder was later vacated by a decision
of the Court as noted previously, and the case was remanded
for further development.
A May 1993 VA outpatient record reflects that the veteran
complained of burning of the stomach after medication. The
diagnosis was to rule out peptic ulcer disease. A subsequent
May 1993 VA outpatient record reveals that the veteran was
again seen for upper GI examination. The diagnosis was
gastritis-questionable urinary tract infection.
A June 1994 VA outpatient record indicates that the veteran
noted that he was nauseated the day before and that he felt
light-headed. He further stated that he had tenderness over
the right upper quadrant of his abdomen.
A November 1994 VA medical examination revealed that the
veteran reported a history of developing infectious hepatitis
in Korea while he was in the service, at which time he was
hospitalized from November 1954 to January 1955. At this
time the veteran complained of various epigastric complaints.
Although he was not on medication for a liver problem, he had
lost 10 pounds over the last year. Physical examination
revealed that the abdomen was soft and tender, and that there
was no evidence of enlargement of the liver. The diagnosis
was “residuals of hepatitis-not found.”
A June 1996 VA medical examination revealed that the veteran
reported a history of having infectious hepatitis in 1955
with a syndrome of epigastric pain and other symptoms treated
with frequent meals and intravenous fluids (IVF). The
veteran reported another episode in 1962 with epigastric pain
and slight jaundice, and at the time of this most recent
examination, the veteran reported frequent nausea and
alternating diarrhea and constipation. Medications at this
time included potassium chloride (KCI), Quinine, Isordil,
Warfarin, Zantac for gastritis, Acetaminophen, and Insulin.
Physical examination revealed the upper right quadrant to be
soft, mildly tender, without enlargement of the liver and
spleen. The assessment was history of hepatitis and
epigastric pain-questionable gastritis on Zantac, with a plan
to perform a hepatitis panel.
Further VA medical examination in June 1996 revealed that the
veteran reported having infectious hepatitis in 1955, and
that he had had two other similar episodes in the late 1950s
and early 1960s. The examiner found no evidence of chronic
liver disease from physical examination or from laboratory
results. The impression was remote hepatitis, likely viral
(A or E), with no evidence of permanent sequela or ongoing
hepatitis. An additional had written notation from a VA
gastroenterologist, dated in August 1996, indicates that this
examiner had examined the veteran’s records and claims
folder, and did not find any evidence of chronic liver
disease.
At his personal hearing in January 1997, the veteran did not
have any additional evidence to offer with respect to this
issue.
Analysis
While there is some medical evidence showing that the veteran
has intermittent gastrointestinal distress (see 1994 VA
clinical medical records), the Board finds that there is no
competent medical evidence of record which attributes such
symptoms to the service connected disability classified as a
residual of hepatitis. Further, there is no evidence of
record which shows that the veteran has demonstrable liver
damage and, indeed, the actual clinical and laboratory
evidence on this matter is against the claim. The only
evidence advanced to support the conclusion that
gastrointestinal distress or liver damage due to the service
connected hepatitis are present in this case is the lay
assertions of the appellant. The appellant, as a lay party,
is not competent to advance evidence on questions of medical
diagnosis or causation (such as whether liver damage is
present or whether gastrointestinal symptoms are due to
hepatitis as opposed to other causes) and thus his assertions
are not probative. Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992). Accordingly, the Board finds that the
preponderance of the evidence is against an increased
(compensable) rating for residuals of hepatitis. Thus, the
benefit-of-the-doubt doctrine does not apply, and the claim
must be denied. 38 U.S.C.A. § 5107(b).
II. Service Connection for Heart Disease and Diabetes
Mellitus, including on the basis that they are secondary to
Infectious Hepatitis
Background
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp.
1997). For the showing of chronic disease in service there
is required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. 38 C.F.R. § 3.303(b)
(1996). If chronicity in service is not established, a
showing of continuity of symptoms after discharge is required
to support the claim. Id. Service connection may be granted
for any disease diagnosed after discharge, when all of the
evidence establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
In order to be entitled to service connection for disease or
disability on a secondary basis, the evidence must reflect
that the claimed disease or disability is proximately due to
or the result of a service-connected disease or injury. 38
C.F.R. § 3.310(a).
Service connection may also be granted for certain “chronic
diseases,” including cardiovascular disease and diabetes
mellitus, on a presumptive incurrence basis if they are
manifest to a compensable degree within one year after
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1996).
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence that the
claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991);
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well
grounded claim is a plausible claim, that is a claim which is
meritorious on its own or capable of substantiation. Murphy,
1 Vet. App. at 81. Mere allegations in support of a claim
that a disorder should be service-connected are not
sufficient; the veteran must submit evidence in support of
the claim that would “justify a belief by a fair and
impartial individual that the claim is plausible.”
38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992). The quality and quantity of the evidence
required to meet this statutory burden depends upon the issue
presented by the claim. Grottveit v. Brown, 5 Vet. App. 91,
92-93 (1993).
The Court has held that the basic elements of a well grounded
claim for service connection and the type of evidence
required to meet each element are as follows:
(1) Competent evidence of current disability (medical
diagnosis); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992);
(2) Evidence of incurrence or aggravation of disease or
injury in service (lay or medical evidence); Cartwright v.
Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet.
App. 465 (1994); and
(3) Evidence of a nexus between the in-service injury or
disease and the current disability (Medical evidence or
presumption that certain disabilities manifest within certain
periods are related to service); Grottveit v. Brown, 5 Vet.
App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995).
Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
The Court has further held that a lay person is not competent
to make a medical diagnosis or to relate a medical disorder
to a specific cause. Espiritu, supra. Therefore, if the
issue is one of medical etiology or a medical diagnosis,
competent medical evidence must be submitted to make the
claim well grounded. See Grottveit at 93.
If the veteran fails to submit a well grounded claim, the VA
is under no duty to assist in any further development of the
claim. Id. Furthermore, a claim that is not well grounded
must be denied.
Initially, it is noted that there is no indication in service
medical records of manifestations, a diagnosis or treatment
for heart disease or diabetes mellitus in service, or at the
time of discharge. However, the appellant's primary theories
of entitlement have been on the basis of presumptive service
connection, based on manifestations to a compensable degree
of a chronic disease within one year after service, and on
the basis that heart disease or diabetes mellitus are
causally related to his service connected residuals of
hepatitis.
Private medical records from Dr. J. R. P. for the period of
April 1955 to May 1984 reflect that the veteran was examined
by a physician on several occasions in 1955, and that his
blood pressure was 160/90 in July 1955, and that it was
135/80 in September 1955. In March 1956 his blood pressure
was noted as 150/80, and in February 1959, it was 144/88.
Between April 1955 and March 1956, there was no record of a
diagnosis of any heart disorder or diabetes mellitus, and no
indication that medication was prescribed for either of these
disabilities. In December 1962, it was noted that the
veteran’s blood pressure was 130/80, and in September 1966,
the veteran complained of shortness of breath and chest pain,
with blood pressure at 128/80. In February 1971, blood
pressure was 152/100, in April 1973 it was 110/78, and in
January 1977, it was 152/94. In January 1978, blood pressure
was 132/88, in September 1980, it was indicated as 164/92-
184/100, and later in 1980, the veteran was prescribed
Enduronyl. In July 1980, blood pressure was 142/82, in
August 1980, it was 154/90, in February 1981, it was 134/90,
in December 1981, it was 144/90, in August 1982, it was
130/96, and later in 1982, it was 128/70. In 1983, there was
a reading of 120/82, in early 1984, there was a reading of
152/90, and in May 1984, the veteran’s blood pressure was
150/88.
A May 1985 discharge summary from S. M. Hospital reflects
that the veteran had been admitted to the emergency room with
a 2-hour history of burning, substernal discomfort which had
developed while he was delivering a television set. He was
noted in the emergency room to have cold and clammy
extremities and was in considerable distress due to chest
pain which prompted admission at that time into the coronary
care unit. Risk factors for coronary heart disease were
noted as a history of smoking and positive family history.
The veteran was admitted to the coronary care unit with a
presumptive diagnosis of acute myocardial infarction, and
this was also included in the final diagnosis.
Outpatient records for the period of June 1985 to November
1988 reflect periodic treatment for complaints of varying
degrees of chest pain and related symptomatology. An October
1986 discharge summary from S. M. Hospital reflects that the
veteran was admitted due to a prolonged episode of chest
pain, and the final diagnosis was unstable angina.
A February 1989 VA medical examination revealed that the
veteran reported having a massive heart attack in May 1985,
and that he had been on medication ever since. The diagnosis
included status post myocardial infarction (organic heart
disease), class 3C.
At a personal hearing in April 1989, the veteran did not
offer any testimony or evidence regarding heart disease or
diabetes mellitus.
VA outpatient records for the period of January 1991 to July
1993 reflect that diagnoses in the latter part of 1991
included diabetes and arteriosclerotic heart disease for
which the veteran was placed on various medications. He
continued to be seen periodically for these and other
disorders through July 1993.
A July 1993 VA hospital summary reflects that the veteran had
a known history of coronary artery disease and was admitted
for increasing chest pain. The impression was increasing
angina, ventricular ectopy, and history of hypertension.
An August 1994 VA cardiac catheterization procedure report
indicates that the veteran had a history of coronary artery
disease and diabetes mellitus. The impression was three
vessel coronary artery disease with decreased ventricular
function with refractory pain on maximum medical management.
Additional VA outpatient records from August 1994 to the
middle of 1995 continue to reflect periodic treatment for the
veteran’s coronary heart disease and diabetes mellitus. A
June 1995 VA hospital summary reflects that the veteran was
admitted for chest pain and the diagnosis was angina,
diabetes mellitus, and hypertension.
At his personal hearing in January 1997, the veteran
testified that he was making a claim that his heart disease
was due to his service-connected hepatitis, and also that his
heart disease was directly related to service under the
presumption rule (transcript (T.) at pp. 1-2). The veteran
further contended that the evidence of hypertension continued
after the first year following service until he was diagnosed
with essential hypertension and later heart disease (T. at p.
2). In support of this contention, the veteran brought
private medical records from Dr. J. R. P., but recognized
that these records did not show that the veteran was placed
on medication for hypertension in 1955, and did not show that
he was given the medication “Serapps” (Serapes) from 1955 to
1980 (T. at pp. 2-3). The veteran indicated that he would
make an effort to obtain a statement from this doctor as to
the medication that the veteran was given and the time it was
given (T. at pp. 3-4). The veteran’s spouse noted that the
private medical records showed that the veteran had chest
pains several years before his heart attack, and further
stated that she was a nurse during the first year following
the veteran’s discharge, and recalled that the veteran was
placed on the medication “Serapps” (Serapes) for high blood
pressure (T. at pp. 5-6). She described this medication as a
little red pill, and noted that he took this medication until
his prescription was changed to “Inurnil” (Enduronyl).
Analysis
With respect to these claims, the Board first notes that the
claims are not well grounded due to the absence of evidence
of a nexus between the disorders and service-connected
disability, the veteran’s period of active service, or the
period of one year following service. An evidentiary nexus
must also be shown in order for a claim to be well grounded,
and this must be by way of competent, i.e., medical,
evidence. Caluza, supra. The evidence which has been
presented does not provide any competent link between the
veteran’s heart disease and diabetes mellitus, and service-
connected disability, the veteran’s period of active service,
or a period of one year following service.
The Board recognizes that the veteran has made an effort to
submit evidence that his heart disease and diabetes mellitus
are related to service-connected disability and service by
his statements, and the testimony of the veteran and his
spouse. However, the Court has said that claimants unversed
in medicine are not competent to make medical determinations.
In other words, since the veteran has had no medical
training, his assertion that his heart disease and diabetes
mellitus are related to service or his infectious hepatitis,
carries no weight. See Espiritu v. Derwinski, supra.
The record shows that the veteran’s spouse is identified as a
registered nurse, and was apparently so employed during the
first year following service separation. The Board finds
that the analysis of her ability to make the veteran’s claim
well grounded must be examined in light of Black v. Brown, 10
Vet. App. 279 (1997). Pursuant to Black, in order for the
opinion of a registered nurse to provide the medical nexus
between current disability and a service connected
disability, there must be evidence of (1) actual expertise
with respect to the pertinent subject matter, and (2)
evidence that the nurse actually participated in the
treatment for the subject disability. Here, the record
clearly does not show that (2) is satisfied, since there is
no evidence that the veteran’s spouse participated in
treatment (as opposed to being present as a witness of
treatment) of hypertension or diabetes mellitus. Moreover,
the record does not establish the expertise of the
appellant’s spouse to diagnosis hypertension or diabetes
mellitus. Thus, the Board finds that her evidentiary
assertions could not serve to well ground this claim under
Black, supra.
In the alternative, even if the veteran’s spouse was found to
have sufficient expertise to render an opinion as to the
existence of hypertension within one year after service, the
Board finds that her statements are not sufficiently
corroborated by the contemporaneous clinical records to
support a favorable decision on the merits. More
specifically, of the several blood pressure readings provided
during the first year following service, while there is a
reading in July 1955 of 160/90, it is followed by a reading
in September 1955 of 135/80, and there is no diagnosis of
hypertension or any other heart disorder. Thus, the Board
finds that any opinion that the veteran was treated for
hypertension during his first year following service based
upon the recollection of his spouse is clearly vastly
outweighed in terms of probative value by the fact that the
contemporaneous clinical records entirely fail to show either
diagnosis or treatment. As the appellant has conceded, the
clinical records do not reflect a prescription of any
medication for hypertension within the first year after
service.
As the Board finds that the appellant has not met the initial
burden of submitting a well grounded claim as to entitlement
to service connection for heart disease and diabetes
mellitus, including on the basis that these disorders are
secondary to service-connected disability, the appeal must be
denied. No duty to assist the appellant in these claims has
arisen. The RO's adjudication of the claims does not
constitute prejudicial error. Grottveit, 5 Vet. App. at 93;
Tirpak, 2 Vet. App. at 611; Sanchez v. Derwinski, 2 Vet. App.
330, 333 (error is harmless if it does not change the
resolution of appellant's claim).
When the Board addresses in a decision a question that had
not been addressed by the RO, as in this case, the question
of whether the claim are well grounded, it must be considered
whether the claimant has been given adequate notice of the
need to submit evidence or argument on that question and an
opportunity to respond and, if not, whether the claimant has
been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384
(1993). In this instance, the Board does not find such
prejudice because the appellant has not met the threshold
obligation of submitting well grounded claims. Meyer v.
Brown, 9 Vet. App. 425 (1996).
ORDER
A compensable evaluation for infectious hepatitis is denied.
The claims for service connection for heart disease and
diabetes mellitus, claimed as secondary to service-connected
infectious hepatitis, are denied as not well grounded.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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